With co-governance and the Treaty of Waitangi set to become a lightning rod in election year, Audrey Young sat down with two former change leaders to talk about what’s happening now.
Former Prime Minister Jim Bolger is challenging current Prime Minister Jacinda Ardern to provide clarity about the Government’s intention with co-governance policy.
And Bolger’s former Treaty of Waitangi Negotiations Minister, Sir Douglas Graham, says the principle of partnership under the Treaty has gone a lot further than was meant in the 1987 Lands decision in the Court of Appeal.
However, both former National politicians, in separate interviews with the Herald, expressed grave concerns about Act’s bottom-line policy of having a referendum to define the principles of the Treaty.
Bolger said it would be “totally divisive and absolutely disastrous” for the country.
Graham said it would be “dangerous”.
Bolger, and Graham, have kept a close interest in the Crown’s relationship with Māori and are not averse to change.
Bolger’s Government settled Māori fisheries claims with the pan-Māori Sealord deal which distributed 20 per cent of fishing quota to tribes. Then it began the Treaty of Waitangi settlements iwi by iwi, most of which have been concluded.
Bolger supported and still supports compulsory teaching of Māori in primary school and regrets not having pushed harder for it. He supports moves to teach a more “honest history” of New Zealand in schools. He has no qualms about New Zealand eventually being called Aotearoa or Aotearoa New Zealand. He does not object to Māori having a voice in local government, such as the two seats Ngai Tahu has on Environment Canterbury. He even proposed an elected upper house of 50 per cent Māori before MMP became established.
But he had major concerns about co-governance. Bolger said the very term suggested a divided society and that a lack of clarity about Government policy was having a damaging effect.
Asked what his advice to Jacinda Ardern would be, he said: “Step up and tell us what you mean on co-governance. A very simple question.”
“The uncertainty is leading to huge anxiety and anger, sadly, anger as well. I don’t understand why the Prime Minister doesn’t stand up and one of her many press conferences and give clarity,” he said.
“Co-governance, I think, is an alien term to New Zealand because it suggests we are a divided society and somehow we are going to bring them together in something called co-governance.”
Bolger believed there should be a broader approach to decision-making.
“What we need to be saying is ‘how do we incorporate our full and complete history into our decision-making. How do we make certain that Māori history, which is clearly distinct and different from European or English history, is considered alongside European and English history?
“It’s much more embracing than the divisive one of co-governance – you’ve got five, I’ve got five. It’s almost like a rugby match with even teams, and whoever wins, wins.”
Co-governance has been a feature of several Treaty settlements, allowing for management of natural resources such as rivers, lakes, or special areas between the relevant iwi and Crown nominees.
But the Waitangi Tribunal has said that co-governance in social service design and delivery is also an essential part of the Treaty relationship.
And the latest 2019 Cabinet Office circular advising all ministers and government agencies about the Treaty in policy-making reminds them to ask if Māori have a role in the design and implementation of the policy, and to consider whether it could be open to legal challenge as a breach of the Treaty.
A new Māori health authority, Te Aka Whai Ora, has been established alongside the new New Zealand health authority, Te Whatu Ora.
Co-governance is a feature of the new water management laws passed in Parliament last week, the so-called Three Waters reforms in which regional oversight boards will have equal representation of councils and iwi.
“What I would like from the Government is some clarity about the endpoint,” said Bolger.
He is extremely worried about the effect.
“This is my concern as a mature New Zealander, is that we are dividing New Zealand as we have never seen it before.”
Graham shared Bolger’s concern.
“I think there is becoming an intolerance in the rest of the population which I find disturbing,” said Graham. People talk to me about it and they are angry. They think it has gone miles too far.
“I don’t believe that most Māori want sovereignty or separate representation or 50 per cent on Three Waters or Five Waters. What they want is a fair go and I think they are entitled to a fair go.”
The expansion of co-governance from Treaty settlements is related to the concept of partnership, the Treaty principle set out in the Lands case of 1987 by the Court of Appeal.
No government since then pushed back on the partnership principle but questions are now being asked about what was intended by it, and whether co-governance is the logical endpoint.
Graham said that there was nothing wrong with the court describing the Treaty as a partnership. He said it meant that the partners owed the utmost good faith to each other.
“There was nothing to push back against other than some obiter dicta from some of the judges about ‘partnership’. You can’t pass a statute saying it is not a partnership,” he said.
That would have been like repealing a view that there should be utmost good faith.
But partnership had since taken on new meaning.
“The concept of partnership has got legs which it doesn’t deserve,” Graham said.
Nobody had had the courage to argue against it or question the logic behind it.
“So it has got away. I don’t think anybody is explaining what it means or where it takes us or the raison d’etre for the whole thing.”
His view on the potential for difficulties over the partnership decision is not new. In a book he wrote 25 years ago, Trick or Treaty, about being Treaty Negotiations Minister, he said the courts and the Waitangi Tribunal were creating problems in describing the Treaty as a partnership, instead of like a partnership.
“The Crown is not in partnership with Māori in running the country and it would be totally unacceptable in my view if this concept were to be pursued. It implies some sort of joint management with veto rights vested in each party. That cannot be the case.”
In his interview, Graham said if it was the intention of the parties to the Treaty that henceforth New Zealand would be governed 50:50 Māori and the Crown, it would have said so.
“It would be quite easy to put it is, but it doesn’t say anything of the sort.
“Now it is a talisman for everything and I think that is most unfortunate because it has perpetuated the theory ‘poor old Māori need a helping hand the whole time, it’s all a breach of Treaty rights and colonialism.”
Graham said it was strange that some Māori were saying they were suffering the results of colonialism 200 years ago.
“My parents’ generation went through 15 years of two world wars and a depression. Most people got wiped out, either shot or lost their shirt. But they never moaned about it from then on. Life’s like that. You have your good times and your bad times.
“Some shocking things were done and they needed to be corrected and acknowledged. But to keep going on and on was the very thing I tried to get rid of, frankly - looking in the past, harbouring grievances. It will just hold them back.”
National’s current policy is to support co-governance of natural resources in Treaty settlements where appropriate but not for social service delivery. It would abolish the Māori health authority.
It opposes Act’s policy to dispense with the principle of partnership established by the Court and pass into law by referendum three Treaty principles: All citizens have the same political rights and duties; All political authority comes from democratic means; New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal.
Graham said while he thought Act leader David Seymour was doing quite a good job he said, having a referendum would be “silly and very divisive.”
“To have a referendum is a bit dangerous too.”
Some people were intolerant and thought Māori were getting a preference they didn’t deserve.
Graham said while there was one law governing all, people had different rights within that law.
For example, common law rights under English law for fishing or customary harvest survived the Treaty and continued unless they were extinguished by statute or abandonment.
“But not all Māori had that right. If Tainui went to the Titi islands and tried to take mutton bird, there’d be a bloodbath because that’s Ngāi Tahu.
“That is part of the law. There is one law but not everybody has the same rights within it,” said Graham.
Co-governance featured heavily in the Government-commissioned report He Puapua, but which has since been officially abandoned.
But the Government has not explained what its plans are.
Deputy Prime Minister Grant Robertson told the Herald in July that co-governance was “a manifestation of the delivery of partnership” but he did not expect it to feature in the party’s manifesto next year.
“What you absolutely will expect to see in future manifestos is an ongoing commitment to the Treaty and a commitment to partnership.”
And referring to the Māori health authority, he said New Zealand should be proud of having taken core democratic principles “and we’re adding to them by making sure that we’re hearing the voice of Maori and we’re delivering better outcomes”.
It follows concerns about use-of-force powers being given to staff.